IoT Projects Marketplace Manufacturer Agreement
Last updated January 2017
Thank you for your interest in publishing in the IoT Projects Marketplace. This IoT Projects Marketplace Manufacturer Agreement (“Agreement”) describes the relationship between you and Smart Digital Machine S.L., ESB87438560 (“SDM,” “we” or “us”) and governs your publication of any Device (as defined below) within IoT Projects Marketplace.
By clicking to accept and/or by submitting a Device to SDM for publication in the Marketplace, you represent and warrant to us that you have the authority to accept this Agreement, and you agree to be bound by its terms.
SECTION 1 Definitions
“Affiliate” means any legal entity that owns, is owned by, or is commonly owned with a party. “Own” means more than 50% ownership or the right to direct the management of the entity.
"Deal conditions” means a set of fees and commercial conditions that is charged Partners by Manufacturers for reselling, integrating or distributing your Device.
“Device” means any hardware, software, data, media, or service published or proposed to be published in the Marketplace under this Agreement, and includes, without limitation, the Device categories.
“Device Contents” means all data, hardware, software, and services included within, installable by, or otherwise associated with a Device. Device Contents include, without limitation, all operating system, hardware and application software associated with a Device, not including any SDM products or services, irrespective of whether you are the owner or not.
"Device Fees” means a set of fees that is charged End-Customers, as applicable, for End-customer’s use of a Device.
“End-Customer” means any user who views a Device published in the Marketplace and requests a proposal made available by a Partner.
“Indirect Channel” means a sales channel in which Manufacturers authorizes Partners to resell, distribute, integrate or otherwise the Marketplace Devices. Terms applicable to availability of your Devices in Indirect Channels are set forth in Exhibit A.
“Listing Information” means the information and images accompanying a Device that identify the nature, volume, End-Customer price, discount for Partners, special proposal conditions and other features of the Device, as specified by you in connection with your request to publish the Device or otherwise.
“Manufacturer Account” means a manufacturer account for the Marketplace, which includes a user name and password.
“Marketplace” means a limited repository of links to Devices published by various third-party manufacturers available through the IoT Projects Marketplace through which Devices are published subject to this Agreement. End-Customers and Partners may access the Marketplace via a web-based management portal, or other mechanisms made available by SDM.
“Monthly Fee” means the fee you pay to SDM, if any, to establish and access your Manufacturer Account.
“Partner” means any user who resells, distributes, integrates, prepares a proposal for an End-customer with a Device published through the Marketplace.
“Success Fee” means the fee you pay to SDM, if any, when an End-customer requests a proposal with one of your Device and a partner prepares a proposal to respond to this request.
“User Data” means all data, including all text, sound, video, or image files that are provided to you by, or on behalf of, End-Customers and Partners through a request for proposal with your Devices.
“User Information” means any information that you collect through the Marketplace or that we provide to you, in our discretion, about End-Customers and Partners who have accessed your Devices, including contact information or, with respect to your Devices, purchase history or usage information.
All other capitalized terms that are not defined in this Section 1 shall have the meanings assigned in the text of this Agreement.
SECTION 2 Manufacturer Account.
To submit certain types of Devices to the Marketplace, we may require you to create a Manufacturer Account through the Marketplace. We may verify information you submit when you set up your Manufacturer Account. We may use the contact information you provide in connection with your Manufacturer Account to send you newsletters and information regarding events, contests, promotions, and the like. Your Manufacturer Account is only for your use, and you are responsible for all activity that takes place within your Manufacturer Account. If you fail to keep your Manufacturer Account in good standing (for example, by failing to pay fees, if any, associated with the Manufacturer Account, providing incorrect or outdated information, engaging in dishonest or fraudulent activity, or repeatedly submitting Devices that violate this Agreement, abuse the Marketplace service, or interfere with any other party’s use of the Marketplace) we may revoke your Manufacturer Account, remove your Devices from the Marketplace, delete Device ratings and reviews, and pursue any other remedies available to us.
SECTION 3 Submission, Approval, and Publication of Devices.
(a) Submission Process. You must submit a request for each Device that you wish to publish in the Marketplace. We may approve or reject any proposed Device in our sole discretion, and may condition our approval on your making modifications to the Device or its Listing Information. You are responsible for ensuring that the Listing Information associated with your Device is accurate and does not violate third parties’ intellectual property rights, including third-party rights in trademarks or icons. Following our approval of a Device, we may publish the Device in the Marketplace, subject to the terms and conditions of this Agreement, the Listing Information provided with your request. You may not publish any Device in the Marketplace unless we approve it in accordance with this Section 3(a). We may, at our sole discretion, make minor changes to the Device or its Listing Information to correct for error(s) or for other similar reasons so that End-Customers can properly receive proposal from Partners for such Device with its Listing Information.
(c) Presentation of Devices. We reserve the right to determine the manner in which all Devices, whether published by you or others, are presented and promoted in the Marketplace. We may display your Listing Information in connection with your Device, as well as other information designed to inform End-Customers and Partners that the Device is provided by you, what content is included within the Device, support options with respect to the Device, and how End-Customers can obtain proposal for the Device from Partners.
(d) Terms for Manufacturer Marks. During the term of this Agreement you hereby grant us a non-exclusive, royalty-free, personal license to display your trademarks and logos (“Manufacturer Marks”), as provided to us through the Marketplace or otherwise, in connection with the marketing and promotion of your Devices or the Marketplace. You are the owner and/or authorized licensor of the Manufacturer Marks. As between the parties, all goodwill associated with the Manufacturer Marks shall inure to your benefit. We may reformat or resize Manufacturer Marks as necessary and without altering the overall appearance of the Manufacturer Marks. You may notify us at any time if you believe that we are misusing your Manufacturer Marks, and we will correct such use within a reasonable time.
SECTION 4 Licensing of Devices and Support.
(a) Licensing of Devices. You are responsible for licensing or otherwise granting rights to your Devices, including all Device Contents associated therewith, to End-Customers and Partners. Such licenses and grants will be between you and Partners and/or End-customers and will not create any obligations or responsibilities of any kind for SDM. With respect to the web-based management portal experience for the Marketplace, the request for a proposal of your Devices shall be conditioned upon a “click to agree” acceptance. You acknowledge that SDM grants no rights or license to your Device through the operation of the Marketplace or through enabling you to publish your Devices through the Marketplace.
(b) Support. You are responsible for supporting your Devices. You will ensure that any support options described in your Listing Information remain available to End-Customers and Partners for as long as the relevant Device is available in the Marketplace. For each Device that you publish in the Marketplace, you must make support available to End-Customers and Partners, either as included within the fees associated with the Device. You must provide commercially reasonable support to End-Customers and Partners for inquiries related to deployment of Devices.
SECTION 5 Privacy.
(a) Use of User Information and User Data. You may use User Data only to support proposal requests on your Device made available in the Marketplace. You may use User Information to contact End-Customers and Partners to the extent permitted in Section 5(c), to prevent fraud, to provide support, or to perform statistical analysis. You may not use User Data or User Information for any other purposes unless you obtain permission from End-customers and Partners for such other purposes.
(b) Privacy Statement. SDM’s privacy policies apply solely to the use of IoT Projects Marketplace services and will not apply to End-customers and Partners’ use of any third-party Device.
(c) Communications with End-customers and Partners. You may use End-customer and Partner Information to contact End-customers or Partners for Transactional Purposes only. You may not contact any End-customers or Partners for Promotional Purposes unless the End-customers or Partners have provided affirmative, opt-in consent to receive such communications from you or unless as otherwise instructed by SDM. Notwithstanding any other provision in this Agreement, if an End-customer has received a proposal for a Device from a Partner through the Marketplace, you may not use User Information to attempt to directly prepare proposals for the same product or service to the Partner or End-customer outside of the Marketplace. “Transactional Purposes” encompasses communications directly related to the proposal request of your Devices and includes communications about support for your Device, service downtime, billing, and notification or delivery of invoices. “Promotional Purposes” encompasses communications related to offering or advertising products or services, feedback requests, links to training or other resources, and any other communications that are not solely for Transactional Purposes. Your communications with End-customers and Partners must comply with all applicable laws.
SECTION 6 User Fees, Payments, and Taxes.
(a) Appointment of SDM. SDM’s role is to provide the technology and services to enable the Marketplace. You acknowledge that you, not SDM, are the seller, provider of your Devices to Partners that are the resellers, distributors, integrators or any other licensor as applicable of your Device to End-customers under conditions of a third-party agreement between you and the Partner. A third-party agreement template can be provided by SDM under no liability of SDM in the commercial transaction between you and the Partner.
(b) Device Fees. When you submit a Device for publication, you will designate the Device Fees (if any) to be charged the End-customers for use of your Device. The Marketplace may direct you to designate Device Fees for different Devices, geographies, currencies, or other aspects of your Device.
(c) Deal conditions. When an End-customer submits a request for proposal for your Device, you will designate the Deal conditions (if any) to be charged the Partners for reselling, distributing and integrating your Device.
(d) Billing. You will charge or invoice the Partners, as applicable in accordance with the Device Fees and the Deal conditions (or its reasonable currency equivalent). You will ensure that all fees and charges payable for use of your Device are not billed and collected through the Marketplace, and you will offer or establish some alternative means of payment.
(e) Marketplace Service Fee. Amounts payable to SDM will be calculated as (i) a “Monthly Fee” for promotion and availability of the Devices in the Marketplace, plus (ii) a “Success Fee” for an End-customer’s request for proposal of your Devices which is prepared by at least one Partner which you have a reseller, distributor, integrator or any other agreement with. You explicitly delegate the acceptance of answering to a request for proposal of your Devices to the Partner.
(f) Payment Terms. You will pay your applicable Marketplace Service Fee through an automatic regulated SEPA payment on your bank account within 5 days after each payment period. All Marketplace Service Fee shall be charged using the SDM’s SEPA payment methods. You must provide us with all financial, tax, and banking information requested so that you can pay us under this Agreement. The payments are in €.
(g) Witholding taxes
You are solely responsible for paying all taxes incurred as a result of the performance of the services under this agreement and complying with all tax-related obligation. We have no obligation to pay or withhold any sums for taxes.
SECTION 7 Removal and Termination of Offerings or Offering Contents.
(a) Removal. Removal of a Device or Device Content will result in the Device and/or Device Content no longer being visible in the Marketplace or available for new End-customers or Partners. If you discover that your Device or Device Content is objectionable or illegal, you must work with SDM immediately to repair the Device and/or Device Content or remove or replace the applicable content. You must use commercially reasonable efforts to obtain for yourself and us any liability limitations or “safe harbor” clauses under applicable law.
(i) Removal by Manufacturer. You may request removal of a Device or Device Content from the Marketplace by sending a request pursuant to Section 12(b). We will remove your Device from the Marketplace within 5 days of your request.
(ii) Removal by SDM. We reserve the right to remove or suspend the availability of any Device or Device Content from the Marketplace or immediately suspend for any reason or no reason. Reasons may include, without limitation,
(A) your breach of the terms of this Agreement,
(B) inconsistency between your Device and its Listing Information;
(C) an assertion or claim that your Device or Device Content infringes the intellectual property rights of a third party;
(D) complaints about the content or quality of your Device or Device Content; or
(E) failure to provide adequate support to End-customers or Partners or to SDM in accordance with this Agreement.
SECTION 8 Confidentiality and Data Protection.
(a) Confidentiality. We will each comply with the terms of any nondisclosure agreement currently in force between us. If no such agreement exists, the recipient of Confidential Information under this Agreement will hold such information in confidence, and will not use or disclose any of the information to a third party, except contractors who are performing on the receiving party’s behalf and only subject to confidentiality terms at least as protective as this section. “Confidential Information” means all information that a party designates as confidential or a reasonable person knows or reasonably should understand to be confidential. Confidential Information does not include information that is or becomes known to the receiving party without a breach of this agreement or any other confidentiality obligation owed to a disclosing party. This section does not prohibit either party from responding to lawful requests from law enforcement authorities.
(b) Data Protection. Each party will comply with all applicable data protection and privacy legislation in connection with its performance hereunder.
SECTION 9 Warranties. You represent, warrant, and undertake to SDM that:
(a) You have obtained any and all consents, approvals, and licenses (including written consents of third parties where applicable) required for you to make your Devices available in the Marketplace;
(b) Our exercise of the rights granted by you under this Agreement will not obligate us or our Affiliates to pay any third party any amounts;
(c) Information that you provide to us under or in connection with this Agreement is true, accurate, current, and complete; and
(d) In carrying out your obligations set forth in this Agreement, you are in compliance with all applicable laws, including privacy laws and export compliance requirements.
SECTION 10 Disclaimer, Limitation of Liability, and Defense of Claims.
(a) DISCLAIMER OF WARRANTY. AS TO MANUFACTURERS AND THEIR DEVICES, WE PROVIDE THE MARKETPLACE "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR THE RISK OF PUBLISHING YOUR DEVICES THROUGH THE MARKETPLACE FOR USE BY END-CUSTOMERS AND PARTNERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF PRODUCT LIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT RELATING TO THE MARKETPLACE. WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY DISCLAIM ANY WARRANTIES THAT ACCESS TO, OR USE OF THE MARKETPLACE WILL BE UNINTERRUPTED OR ERROR FREE.
(b) LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN SECTION 10(c), EACH PARTY’S AND ITS AFFILIATES’ LIABILITY UNDER THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES UP TO THE TOTAL MARKETPLACE SERVICE FEES RECEIVED BY SDM DURING THE PREVIOUS TWO (2) MONTHS. EACH PARTY AGREES NOT TO SEEK, AND EACH PARTY EXPRESSLY WAIVES, ANY RIGHT TO RECOVER ANY OTHER LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, OR INCIDENTAL DAMAGES. THESE LIMITS AND EXCLUSIONS APPLY EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES.
(c) Duty to Defend. You agree to defend, indemnify, and hold harmless us and our Affiliates, as applicable, from and against (including by paying any associated costs, losses, damages, expenses, and attorneys’ fees) any and all third-party claims:
(i) alleging that your Device or Listing Information infringes any proprietary or personal right of a third party;
(ii) arising from any dispute between you and an End-customer or Partner relating to your Device;
(iv) based on your failure to collect, remit, or report any sales, use, goods and services, value added, or other similar tax that you are obligated to collect, remit, or report, including any associated penalties and interest.
We will (A) notify you promptly in writing of the claim, provided that our failure to notify you will not relieve you of any liability except to the extent that such failure materially prejudices your legal rights; and (B) at your reasonable request, provide you with reasonable assistance in defending the claim. You agree to reimburse us or our Affiliates, as applicable, for any reasonable out-of-pocket expenses incurred in providing such assistance. You may not make any settlement or compromise of a claim, or admit or stipulate any fault or liability on the part of us or our Affiliates with respect to any claim covered by this section without our express, prior written consent.
SECTION 11 Term and Termination
(a) General. This Agreement will remain in effect until terminated. Either party may terminate this Agreement at any time, for any reason or no reason, upon 5 days’ written notice.
(b) Effect of Termination. Within 5 days of either party’s notice of termination, we will remove all of your Devices from the Marketplace. We reserve the right to remove your Device on an expedited basis if we terminate this Agreement for material breach. Sections of this Agreement that, by their terms, require performance or establish rights or protections after the termination or expiration of this Agreement will survive.
SECTION 12 Miscellaneous.
(a) Notices. All notices that you provide to us under this Agreement must be sent to the following email alias: firstname.lastname@example.org. We may disclose your contact information as necessary for us to administer this Agreement through our Affiliates and other parties that help us administer this Agreement.
(b) Reservation of Rights. Except as expressly provided, nothing in this Agreement transfers, conveys, or grants any right, title, or interest in any materials exchanged by the parties. Each party reserves all rights not expressly granted.
(c) No Exclusivity. Each party acknowledges and agrees that the rights granted to and obligations due to the other party in this Agreement are intended to be non-exclusive and therefore that nothing in this Agreement will be deemed or construed to prohibit either party from engaging in or participating itself or with one or more third parties in business arrangements similar to or competitive with those described herein.
(d) Contracting Party, Jurisdiction and Governing Law.
This Agreement will be governed by the laws of the State of Spain, excluding its conflicts of laws; and you irrevocably agree that all claims brought relating to this Agreement will be brought exclusively in the courts in Spain, in which case the parties consent to exclusive jurisdiction and venue in the Spanish State courts.
(e) Costs. Each party is solely responsible for all costs and expenses incurred by it in connection with its performance of this Agreement.
(f) Responding to Claims. If we receive a claim from a third party requesting that your Device be changed or removed, we may refer that claim to you. You must comply with the notice as soon as reasonably practicable. If you discover that your Device violates the terms of this Agreement, you must immediately notify us and work with us to cure the violation.
(g) Waiver. Either party’s delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy.
(h) Severability. If any court of competent jurisdiction determines that any provision of this Agreement is illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect.
(i) Assignment. Neither party may assign this Agreement (or any rights or duties under it) without the other party’s prior written consent, provided that either party may assign this Agreement without the other party’s consent (i) to an Affiliate or (ii) in connection with a merger, acquisition, or sale of all or substantially all of its assets. Either party who assigns this Agreement as permitted in this Section 12(h) shall provide the other party with prompt notice of such assignment. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
(j) English Language. The parties intend for this Agreement to be written and interpreted in English. Any notices required or provided under this Agreement will be in English. In the event of any conflict between the English version of this Agreement or any notices and a translation of the same, the English version will prevail.
(k) Force Majeure. Neither party will be liable for failure to perform any obligation under this Agreement to the extent such failure is caused by a force majeure event, natural disasters, war, civil disturbance, action by governmental entity, strike, or other causes beyond the reasonable control of the party. The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use reasonable efforts to resume performance. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event ends. Lack of funds will not constitute an event of force majeure.
(l) Relationship of Parties. Neither this Agreement, nor any terms and conditions contained herein, create a partnership, joint venture, employment relationship, or franchise relationship.
(m) Updates. We may update this Agreement from time to time including, if required, the Marketplace Service fees. If we update this Agreement and/or the Marketplace Service fees, we will indicate the last date on which the Agreement was modified at the top of the Agreement and provide you with 5 days’ notice prior to the effective date of the updated version of the Agreement and the Marketplace Service fees. By continuing to make Devices available in the Marketplace after such notice period, you agree to be bound by the terms and conditions contained in the updated Agreement and the updated Marketplace Service fees.
(n) Entire Agreement. This Agreement (including its Exhibits) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications.
EXHIBIT A Availability of Devices in Indirect Channels
(a) Partners and End-customers. If End-customers in Indirect Channels requests a proposal, your sale of Device will be to the applicable Partner and not directly to the End-Customer. You will bill the Partner, as your agent or commissionaire, for the End-customers’ use of your Device according to the Device Fees and the Deal conditions you have established for the proposal. Partners will be responsible for setting the prices at which they resell, distribute, integrate your Device to the End-customers and for collecting such amounts from the End-customers. The prices at which Partners resell, distribute, integrate your Devices will not affect the Device Fees and Deal conditions that are charged to Partners for the End-customers’ use of your Devices.
(b) Consent to Resell. By publishing a Device in the Marketplace, you consent to having your Devices resold by partners to End-customers in any associated Indirect Channels at resale prices established by such Partners in their discretion. If you do not wish to allow an Device to be resold by Partners in a particular country, you may make your Device unavailable for purchase in such country. Removal of an Device in any country will apply to both Indirect Channel sales and sales directly to End-customers.